Show FOR THE T I 1 I 1 E V u A I 1 I 1 IT audle harts D cisla in its ibe cass casa of the baia baft ogin cry ci eluted into between attorney allibone for tha bu bank and city stewart leave very vary little ground for the oty to stand on the caso caco of th first national lauon il bank vt v logan city wa was s pre tented to the court lat last week by Attorn attorney cy allison of oder and city attorney J Z steward jr As the city pay salary enough tj ta justify sir mr stewart i iu U getti gelting du assistance mr allison had bait it pretty much lis his own way was his honor tool the matter under tinder advisement a day or two avd aad rendered his decision as follows first national bank of Logan tiff vs lo 10 I ogan an city ftfe n da n t tn in this action the plaintiff bank beeks to recover from tile the defendant city the um sum ot of buco and in terest thereon at 10 per cent per par annum from the day of dec ivi and aito Meys lees us evidenced by a promis ory note not 19 given 1 yea june v ulab iise imadel at e the he city is a k iz alar to wl ri t tein in question on behalf of the city and that at the time of tile execution oi said note on oil june 27 1893 logan city was already indebted in a 1 um of money equal to its bor lowina capacity and therefore auy any further indebtedness attempted to lie le incurred was void tito the congressional law applicable to and binding L upon agan city at tho the time in q question fuestion pro vided aided that no political or municipal corporation cor portion county or other subdivision in ill any of the territories of the united ita tes shall ever become indebted in any manner or for any purpose to an amount in the aggie aggregate gate including exis existing ex ieline tins inda exceeding four per on the value of the taxable property within such kitch corporation county or subdivision to be ascertained by the last assessment for boua to the incurring or bueg indebtedness debt edness and all bonds or obligations actions in excess of such amount given by such corporation shall lie be void the tame lame provision was also t r substantially re enacted liy by the territory Teni tory of utah the reckless way in which towns cities and counties in the united states alun plunged ged into delit debt lefore before being restrained by similar piu constitutional and legislative C pro ismons demonstrates tile the ind and soundness of such a restriction this salutary law lor for the protection protect i of the people against burdensome taxation should be enforced regardless of the hardship haid haills ship bip it may mav ork to individuals in ill special i cases the plea of hardship or repudiation G C U uld id not dot justify a court in setting alide ai ide a I 1 well ell principle of law One question is what wh it was tile the total amount of indebtedness edns of login logan city at tile time of the div iiii of the note sued cited on OD to wil wh time 27 1893 among the v various arious stipulations populations cf facts in lieu of evidence entered irao into in this case by the counsel for loth parties is one to the e direct that the assessed valuation of property in logan city to ia taken lien in this case is 21 thereby I 1 fixing the be bo capacity of I 1 the eity city on oil said davat day at and that there wele debts due dud from I 1 logan joaan city to certain parties nannel in the aggregate men of iry tile the defendant con tends and seeka seek to prove that at tile the time in question there was a 11 further surn eum of due to th lh colorado to lorado fuel anil and iron co front from logan bogan city under a purport pur portel ot contract between there ilium iwo ino on may bilay 10 for cei e tain materials for the water works sy ayi tein stern and that ther therefore elore tile the debt limit was reached anil ami the tran achion on with aith the plaine ft hank consequently void the evi deime clearly cearly fails to ti cablish ei any leal contract conti act on or nicalo to june 27 i 1893 between logan city and th the colorado fuel anil and iron co the purported Ponti act was signed in it half of login logan city by jams jame quayle mayor and attested liy liv A adocph coph ander on city recorder Record cr but bt ll 11 it inot is not shown that he beeer eer hd had a any ny legal authority from the council to in enter into such a ct the and resola eions of the council fail to show that any such power was ever given or attempted to be given to thi the mayor the city recorder t spilies lie he knew of no such resolution of record and bad no remembrance that one was ever passed ex mayor quayle testifies that he J jonew of no such le ie solution ever cie baine binl passed but that they e authorized hirn him in conversation neither iz i there any evidence de before the court of a legal unification ratification or of the alle alleged c d contract on 01 or prior to the late date in question ot of course a legal contract could only bo be entered into by b the city in fill I 1 tit 4 c belu 1 1 aw and aad ir 01 IRA f e q ul I 1 ahr alere being no evidence before tit clr curt of any cr bremer indebted apps on june 27 than the SOW admitted to he be due there asat nothing to ar invent vent the incurring of tile the obligation to the plain tin hank bank it A faither anither question raised by the defense is whether tile mayor siador wa was eni empowered lowered bs b proper proc procedure eduie of the city council to give the note here sued upon the stipulation simulation of facts by counsel would seem to tn attle atle and preclude any such question to tile the statement being in par part t as follon bollons fol lons s the following facts are admitted to lie be tru 11 that hat on the da day olmay of may isi the alaor and city council passed a motion the purport p of which wa was to authorize the mayor of faid aid city to borrow as necessity required it a sum still of money bonev sum suin until the receipts derived from taxes was to meet said obligation that in pursuance of said motion the mayor of logan cita and the city Jorder Ile Re corder thereof ill in behalf be half of said city made and delivered to plaintiff plaint plain tik if a certain promissory note of i inch the following is a copy then follows FL a copy of the note and other liina to the effect that art was paid by bv the bank to the city in consideration of the note that it wa paid as a loan on the day the note wa was given and that the note set out was executed by the macir and recorder of said defendant logan city pursuant to said motion of the mayor and city council of said defendant city and upon the authority conferred by said motion and that ahat said eaid money was borro borrowed by said defendant front from said plaintiff for the purpose of paying the current running lunning ex of said city etc the stipulation is that the motion resolution va a passed by the mayor and city council in the absence of proof if proof could be admitted to change or modify the stipulation of 0 the irre irregularity ulai ity of the adoption of this motion it can not be presumed to l le be e irregular or i to the procedure r quiren by law on tile the contrary f t any ally is nc cesary to aid the stipulation it would bp be in ill favor of the legality or re alani of atie the motion ur or I 1 another cou loutiti contention tIti of the be ds de f ibe is that if authority w s ovell to lii the mayor may or to borrow money none none was given to make inake a romi I 1 f ory fory note pio providing viding for t f pay inet of 10 per cent interest and ri attorneys attorney fees jn n c cie ie i e of power to borrow borrely money carries carrie with it the inci diendl power to give a note or bond and alie ordinary security for the sen ciui bior rowed this is is held in thip cat of hatch s coddington Codding tuii 5 oo 00 t 6 11 II S S it 1 is contended liat aliat t tile the r rate ate johnte of interest ret to be pa adar ad aft Jr I 1 tile the agreement to 0 o pay atto attori I 1 gys Ys fees as unreasonable or bata t to the city having found th thu thon u t fat thorf was on june 27 1803 1893 between bet iceo the defendant city and tile tie Cp lorid fuel iron co aud and ej 0 is i io 10 evid evidente enve before the cobit at an any y greater indebtedness at trat 0 han hail the debt lift leng at the time an bavm further found that tha ilia note fall md m d d upon herein wils wag legally ald al re reau zu barly given it will not nol weece ary to consider other learnedly discussed at length upon the bearing such as whether thu ian il could exceed its de alimia lor LL ST I 1 X ad I 1 I 1 ar I 1 V iz irrigation AS PRACTICED IN st lui dispatch the payment of the ordinary and I 1 current running run nini I 1 expenses salaries of officers and obligations impo imposed ed by law and also the question of real and apparent in indebtedness ested rowin rowing out of the fact that logan city created by resolution a special fund out of money do de vired from the bale of the water works bonds which special fund was to be used in payment of the water works system including the um furn to the colorado fuel and iron co co for the material furnished I 1 and of which special fund some I 1 1000 11 was on deposit in the bank on the date dale of the note in 1 suit the there theo re questions need not dot be passed upon in deciding this case the discussion then is in favor I 1 of the plaintiff plain tift bank of judgment in ill the mm lin of principal tool ja and at attorneys torrie s fees in th the c sum of 20 ia the only testimony at to what amount would be a reasonable attorneys fixes it at from froin 23 to but I 1 think the atrio allowed will be a fair although riot not a liberal foe fee in view of all the circumstances or of this case |